#### Ex parte Kenneth L. MELTON.

No. 27655.

Court of Criminal Appeals of Texas.

May 25, 1955.

*363Morris Atlas, McAllen,' for appellant.

Dave Horger, Jr., First Asst. Dist. Atty., Edinburg, Leon Douglas, State’s Atty., Austin, for the State.

MORRISON, Presiding Judge.

Relator, an inmate of the county jail of Hidalgo County, applies for writ of habeas corpus to secure his release ■ from confine; ment, alleging that the commitment by virtue of which he is held is void because: (1) he was deprived of a trial by a jury of twelve men, (2) the act which created the court from which it was issued was unconstitutional, and (3) he was tried for an offense under a statute which this Court has held to be unconstitutional. The relator was tried and convicted in the County Court at Law of Hidalgo County of the offense of contributing to the delinquency of a minor and his punishment assessed at six months in jail: Relator'appealed his conviction to this' Court, and the judgment of the trial court was affirmed. Melton v. State, Tex.Cr.App., 275 S.W.2d 824. This is a collateral attack upon such judgment of conviction.

The County Court at Law of Hidalgo County was created by the 52nd Legislature by the enactment of Article 1970-341, V.A. C.S., which’ became effective March 17, 1951.

We shall discuss relator’s contentions in the order stated.

The jury question is first. Relator relies upon Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641, decided by the Supreme Court of this State. The holding in that case was. that an act which created the Court of Domestic Relations for Potter County was unconstitutional insofar as it provided for a trial by a jury of six men in said court.- ■ The effect of -that holding was that the court named was neither a county' or district court but came under the category of “such other courts” which the Legislature were given the power to create by Section 1 of Article V of the Vernpn's Ann. St. Constitution. It being such a court, it could not come within the terms of Section 29 of said Article, which authorizes a jury of six men in a county court.

We now analyze the Hidalgo County act.

Section 1 calls it ,the County Court at Law of Hidalgo. County..

Section 2 gives it the samé jurisdiction, civil and criminal, as the County' Court.

Section 3 gives it concurrent probate jurisdiction with the County Court.-

Section 5 provides, in part, as follows: “The practice in said. Court, and appeals and writs of error thereto and therefrom, shall be as prescribed by the laws and rules relating to County Courts.”

Section 6 provides that the judge should be appointed in the • manner provided for the appointment'of county judges.

Section 7 provides that the judge execute a bond and take the oath of office required of county judges'.

*364Section 8 provides that special judges in said court should be selected in accordance with the law relating ,to. county courts, that they should be compensated in the same manner, and that the county judge might sit in probate matters in the new court in the absence of the regular judge.

.Section 9 provides for removal of 1⁄83⁄8 judge in the same manner and for the same causes as a county judge.

Section.il provides that the judge shall be paid the same salary, out of the same fund and in the same manner, as the county judge, and authorizes him to assess the same fees as a county judge. ■,

Section 13 provides that 'the judge shall have the same power' in contempt as a county judge.

Section 14 provides' that the county clerk shall.be the .clerk, of the court.

Section 16 provides,, in part, as follows:

> “The' jurisdiction ahd authority now vested' bylaw in the County Court Hidalgo County and the Judge thereof, 'for' the drawing, selection and service of jurórs and talesmen shall also be exercised by the County Court at Law and the Judge-thereof; but jurors and talesmen, summoned for either of said Courts may by order of the Judge of the Court in which they are summoned, be transferred to the other Court for service therein and may be used therein as if summoned for the Court to which they may be thus transferred. Upon concurrence of the Judge of the County Court at-Law and the County Judge, jurors may be summoned for service in Courts and shall be used inter-, ch'angeably in both siichi Courts.”

'An examination of the Act reveals that no jurisdiction has' been conferred on the qourt created which is not exercised by .county courts generally under the Constituí tion and laws of this State. .

.From these provisions, we conclude that the Legislature, by the passage of the Hidalgo County act, intended to and did create a county court to be. known as the County Court at Law, in which trials should be had to a jury of six father than twelve, in accordance with the terms of Article V, Section 29, of the Constitution, and that the Jordan case is not here controlling.

We move on to relator’s contention that the Hidalgo County act is unconstitutional because it confers probate jurisdiction on the court so created.

The relator was convicted in a criminal case. The Hidalgo County act contains a severability clause, ahd if the Supreme Court of this State should hold.that such transfer of probate jurisdiction rendered that" portion of the act unconstitutional, it would not affect the validity of this holding, which upholds the criminal jurisdiction of said court. In the light of a recent holding of the Supreme’Court in State ex rel. Rector v. McClelland, 148 Tex. 372, 224 S.W.2d 706, we disclaim ány fear that the Supreme Court will hold" this act unconstitutional.

Relator's last contention is that he was tried under Article 534a, V.A.P.C., which we held to be- unconstitutional. Waggoner v. State, Tex.Cr.App., 275 S.W. 2d 821.

He contends that the record of the former case on file in this Court will reveal that he was tried under Article 534a, V.A.P.C., and not under Article 534 because of the following:

1. The prosecutor read to the jury portions of Article 534a: ' •

. 2. The prosecutor stipulated that he advised the relator of the penalty provided by Article 534a, and

3: The court in his charge to the jury set out the punishment provided'by Article 534a, which 'carries a maximum penalty less than that proscribed by Article 534.

This contention was disposed of by the majority opinion of this Court on the appeal in Waggoner v. State, supra, and in Melton v. State, supra, but will, be given a more, extended discussion,

*365We have concluded that the material inquiry in a case' such as .this should be,' not whether, ,the, indictment, the .manner in which the case is p.rosecuted, and the cqurt’s charge would .support a conviction .under some other statute, but whether they would support a conviction under the ■■ statute which we held to be valid. .

The opinion of this Court on the appeal of this conviction found that Article 534a was void and, -being void, did not repeal Article 534, that both Articles denounced the crime of which appellant was convicted, and that the court which tried the appellant had jurisdiction of the offense denounced by Article 534. ■ ■

Reliance is. had upon Ex parte Watson, 154 Tex.Cr.R. 167, 225 S.W.2d 850. In that case, we held .an ordinance of the City of Clarksville void because the maximum punishment provided by such ordinance was different from that provided in a State statute which defined substantially the same offensd.'

We are not here confronted-with a c.on-flict between a city ordinance and a State statute. We are. not even confronted with a conflict between two State statutes. We have' a conviction with punishment assessed that was within .that proscribed by either of. two State-statutes, one of .which we-have held to be void. ' •'

At the time of the trial, the validity of such statute had not been adjudicated. The trial court, demonstrating caution, elected to charge the jury as to the lowest maximum punishment’ proscribed by either of the statutes só as to avoid any possibility of injury to the accused. The Watson case is not here cohtrolling.

In .the recent case of Head v. State, Tex. Cr.App., 267 S.W.2d 419, the indictment was for rape, and the trial, court told the jury in his charge, to which, as in the case at bar, no objections were leveled, that the maximüm, punishment' was life imprisonment; whereas under the maximum was death. In that case,.we cited as authority Graham v. State, 73 Tex.Cr.R. 28, 163 S.W. 726, and held that, since the charge was beneficial., to the accused, he could not be heard to complain even on appeal. It must be remembered that this is a collateral attack.

We remain convinced that the conviction in this cas'e 'is supported by Article 534 and that the relief prayed for should -be denied.

It is so ordered.